Photographer Still Insisting He Holds Copyright On Photo By A Monkey, Hints At Possibly Suing Wikimedia

from the test-cases dept

Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one:

As we noted when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright was his. However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.

Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.

The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.

Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.

First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author.

From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:

“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.

While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works.

Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:

“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.

The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.

That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?

So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.

Doesn't he read bloom county?

This analysis is kind of over simplified and Slater is making the wrong argument which is pretty stupid of him. You are correct about the ownership of the camera not having anything to do with copyright. There can be much more to "taking a photograph" than simply pushing the button. What he should be arguing is that he created the image by setting up the environment that resulted in the creation of the image and in that way he created it and therefore should own the copyright. It matters not whether it was a happy accident or not. It only matters that his actions were what resulted in the creation of the work.

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Setting up the environment does not involve just the location. It is setting the framing and subject and the lighting of the photo. All of which the photographer did not do since the camera was operated by the monkey

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Ok so now you have to set up the lighting? So are all photographs taken in natural light not copyrighted because the lighting wasn't setup by the photographer? Or is simply choosing a time to be there when the lighting is right enough to qualify, which it would seem he did since he chose to take his camera there that day at that time.

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Again, by this photographer's own account he had no intention of taking those photos at that specific time. He put down the camera, and turned his back. If he had had any intention of taking a photo at that precise point in time, he would either have been holding it, or had the photo set on timer or something. Also, no, not setup the lighting itself, but how you use what light is there. As in, what position are you and the camera in, where is the light source, what angle is it, how bright is it? Is the light shining directly vertically down on the subject and am I and the camera in the shade?

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The mistake he made was telling everyone the monkey took a selfie. What he should have done is say he set up the camera and patiently waited for the curious creature to approach and when he saw it act as if it was smiling/posing he got the shot. That way leads to $$$$, the selfie angle not so. If you are a content created it also pays to know the laws involved.

One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.'At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection.'They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.'The sound got his attention and he kept pressing it'At first it scared the rest of them away but they soon came back - it was amazing to watch.'He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn't worked that out yet."

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I never said anything about whether the setup was intentional or not. I was arguing about whether it was setup at all and my argument is it was not. So please, provide evidence of him setting it up, even if unintentionally. From the photographer's own account, he didn't set anything up, and had no intention to take the photos that were taken. Monkeys took the camera when his back was turned, and he made no move to take it back off of them.

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By taking his camera into that environment and setting it down such that it could be picked up by the monkey, he created the situation where the images were produced even if he didn't intend to produce those specific images by those actions.

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...merely setting down a camera such that a possible monkey may possibly walk by and may possibly decide to play with it and may possibly end up taking photos with it is not enough in my mind to say it was a setup.What if an acorn or something similar fell off a tree and somehow hit the shutter button on the camera, while his back was turned? Would that still be a setup, and would that setup some translate into him getting the copyright? Both there, and with the monkey, no legal person (i.e. a human) took any active steps whatsoever to actually take the photo. With no human participation and with no intent to take photos (since by his account, he put it down, thus logically meaning he was going to take photos himself later on), there is no creative expression going on and thus nothing to copyright.

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I am not aware of any threshold for a specific amount of action that needed that needs to be exerted in order to claim copyright other than evidence of something that was responsible for the creation of the work. In most cases, involving disputes over copyright ownership due to creation of the work (ie. other than disputes caused by a transfer) there is more than one party that is arguing that their contribution to the creation of the work is more significant than the other. For example, if I do a photo shoot and I have an assistant helping me with the set up, he has a contribution to it's creation, however his contribution is far less than mine such that should he try to argue that his contribution entitles him to the copyright of the images my contribution would supersede his. In this case, IF the monkey were able to make the claim of it, there might be an argument that the monkey should own it, but as there is not, there is no one else who can make a valid claim for it and thus if he were to show that virtually anything that he did to contribute to it's creation would validate his claim.

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Presumably the monkey didn't make adjustments to the exposure settings on the camera and those settings were likely set by him prior to the monkey getting it as was the choice of lens that was placed on the camera. There are several things he did to contribute to it's creation.

And again when you say "something other than" you are suggesting that there is a defined minimum standard for authorship. I say, "Where?"

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So, you're saying that having certain settings on a camera and attaching a lens (which, for all we know, he picked at random) means he should have the copyright? Even though he didn't compose the shot? That's a very dangerous argument to make.

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First, you can argue that you wouldn't have chosen a lens at random, but you can't argue that he didn't unless he stated otherwise.

Second, no decision is made in a vacuum. It's dangerous because, if he would succeed in such an argument, it would imply that the setup is more important than the composition of the photo. I'm not sure many photographers would much care for that decision...

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I am speaking as a professional photographer with the experience of knowing plenty of other professional photographers and knowing that none of them are likely to set out to shoot something and randomly pick a lens out of the blue that may or may not suit their needs.

I also said nothing about setup being more or less important than composition or anything else. I said that some small contribution on a claim beats no claim at all. It's like being the plaintiff in a lawsuit and the defendant not showing up. If there is anything that can be demonstrated to lend validity to the claim, you win by default.

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Except there IS a claim - a claim that the photo is in the public domain, by Wikimedia. But I don't think that's what you meant, so I'll say this:

Copyright is not just a "who did the most" situation. You can have joint authorship of a work. The camera owner is either an author of the photographs or not, regardless of who else might be an author.

If the monkey was instead a person, it's rather obvious that the owner of the camera wouldn't be considered to have done enough to be a joint author of the photographs, unless you think anyone who sets down a camera gets copyright on whatever photos are taken by the next person to pick up that camera. The camera owner did not originally fix the work in a tangible medium, or authorize the fixing of the work in a tangible medium, so he can't be considered an author. It's irrelevant that nobody else can be considered an author. Some things HAVE no author and therefore no copyright. The monkey itself, for example, can be owned but it cannot be copyrighted.

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You are correct when you said by claim, that is not what I meant. Specifically, I meant claim of ownership of the copyright. This sort of thing happens with physical property too. With land, it's called adverse possession. You can claim land, demonstrate why it should be yours and if no one contests it with a better claim as to why they are the rightful owner, it becomes yours.

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Adverse possession requires "use which is actual, open and notorious, exclusive, adverse, and continuous for the statutory period."

The photo hasn't even existed long enough for adverse possession to take effect, so it doesn't apply. Also, because Wikimedia is actually using the photo, there is no exclusivity of use, so it wouldn't apply. Additionally, adverse possession doesn't apply to copyright, so it doesn't apply. Furthermore, there IS no copyright in the photo in the first place, so it doesn't apply because there is nothing to apply it TO.

Adverse possession is not similar to the Wikimedia claim. Has there ever been a case made by the government (ie the public) to seize property by adverse possession? Imminent domain? Yes. Adverse possession? I don't think so.

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It would be better if you were speaking as person who understands the law rather than a person with a bias due to their livelihood that makes them want it to be different than it actually is.

If you hand someone else a camera that you set up, and they take a picture, they own the copyright (even if you own the film and the camera).

If you hand an animal a camera that you set up, or one takes it without permission, there is no human creator of the work and thus there is no copyright.

Copyright doesn't magically revert to the human who (unintentionally in this case) facilitated the taking of the picture. Your stance seems to assume that copyright must exist in the creation of any work in a fixed medium, but that's not a sine qua non for the existence of a work.

For your stance to be correct, a photographer's assistant who sets up a camera and even the scene of a photograph would own the copyright on a photograph taken by the photographer himself. But this isn't the case and is not recognized by photographers as being the case.

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I have no bias. As I previously stated, copyright is damned near worthless to me as it is only as valuable as it is enforceable. Enforcement is rather expensive, not only directly due to the cost of litigation, but also indirectly in terms of loss revenue due to self inflicted damage caused by suing clients or potential clients who might like your work.

The critical phrase is "by or under the authority of the author." That statutory language and the Supreme Court's guidance produce a definition of an author as the party who actually creates the work, that is, the person who translates an idea into an expression that is embodied in a copy by himself or herself, or who authorizes another to embody the expression in a copy. The definition, however, has limits. When one authorizes embodiment, that process must be rote or mechanical transcription that does not require intellectual modification or highly technical enhancement ....

I do not think you can treat the monkey as being "authorized" by the photographer to take the pictures. And I don't think you can treat the monkey's actions as "transcription".

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Your assistant in that case would typically be working under a work-for-hire contract, where he would have, prior to the photo shoot, waived any claims he could possibly have had over any photos taken during the shoot.Not so here.

"but as there is not, there is no one else who can make a valid claim for it and thus if he were to show that virtually anything that he did to contribute to it's creation would validate his claim."So you're essentially saying that copyright falls to the closest person (in terms of both spatial location and in terms of any involvement (if any) they had with the work) to the photo if the photo was "caused" by some non-human agent?Can you cite where that is in the law?

So let's say I'm out and about with my camera. I put down my camera for a moment, walk behind a tree to take a piss, and an acorn falls off a tree and hits the shutter button. Do I get the copyrights over those photos, even though this scenario is essentially the same as the guy in this article?

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So let's say I'm out and about with my camera. I put down my camera for a moment, walk behind a tree to take a piss, and an acorn falls off a tree and hits the shutter button. Do I get the copyrights over those photos, even though this scenario is essentially the same as the guy in this article?

I would say no.

"17 U.S. Code § 102 - Subject matter of copyright: In general

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression..."

If there is no authorship, there is no copyright. You would still own the physical photo, but nobody would own the copyright on the photo.

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The argument is about what constitutes authorship.

Fair enough. Let's see what the notes on the copyright statute on the Cornell site say.

The phrase “original works or authorship,” which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present copyright statute.

... well, that wasn't very helpful.

...the courts have indicated that “all the writings of an author” under the present statute is narrower in scope than the “writings” of “authors” referred to in the Constitution.

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In a typical commercial setting you would be correct about the work for hire setup because that automatically eliminates the dispute. However, in a less formal situation that is not so much the case. I have had situations where I and other photographers spent time helping each other shoot some things that were interested in shooting for our portfolios.

Also you are asking me to prove a negative. I said I don't believe there is a defined threshold for that amount. In fact the rejection of the "sweat of the brow" argument by the courts would suggest that the courts concur that no such threshold exists. You are the one suggesting that such a threshold exists and that this case does not meet that threshold.

In your example with the acorn, it is possible that you could make that assertion that he copyright belongs to you and I don't see where there would be a problem with that.

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"Also you are asking me to prove a negative. "No, I am asking you to prove a positive. You said that "there is no one else who can make a valid claim for it and thus if he were to show that virtually anything that he did to contribute to it's creation would validate his claim.""

That is a positive claim. I'm asking you where in the law it says that in the case of a dispute over copyright, the author (and thus copyright holder) shall be identified as being the person who contributed even the tiniest bit towards the photo.

"In your example with the acorn, it is possible that you could make that assertion that he copyright belongs to you and I don't see where there would be a problem with that."

How so? I have no intention of taking a photo at that time. Perhaps I'm there intending to take a photo of a rare bird. When I put down the camera (because it's heavy), I am not making any effort towards any type of creativity. I merely put it down (coincidentally enough with the camera switched on). I have made no moves towards framing, lighting, subject, anything at all. When the acorn falls, that is due to gravity. Nature has acted and caused something to hit the shutter button, thus causing an image to be recorded on a fixed medium.I have nothing whatsoever to do with this photo. I am behind a tree relieving myself. It is nature that has taken the photo, not me, and since nature is not ever considered a legal person, it cannot be counted as an author. Since there is no author for this photo, there can be no copyright applied to it. (Same here with the monkey, it's a thing from nature that is not considered a person in legal terms)I am of course free to do whatsoever I want with the photo, since it is public domain (including charge for it), but I cannot take someone to court when they use it without my permission.

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Who said it had to be his idea? Are you trying to say if I accidentally take a picture that turns out completely different than I intended it (or even didn't intend to take at all) it isn't covered by copyright? No happy accidents?

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Ok "lose" may have been a bad choice of words since I misread the article. I was under the impression that a court had determined that he didn't own the copyright and in that case he would have "lost" it. That doesn't change the fact that he's making the wrong argument for his claims to it.

Only for some photographers.

Some photographers really do *make* photos rather than merely take them.

What amuses/annoys me about many photographers and their absolute assertion of copyright is that in many cases all they did was point a camera and press the shutter, but had nothing to do with creating the mise-en-scène, or any of the patented or copyrighted objects, nor, often, did they get prior permission from the people in the photo. Yet the photographer think that they did something amazing by pressing the shutter, and that all the creativity in the photo - almost all of which, in the case of many urban photos or photos of staged events, was created by **other people**.

As a photographer, I'm sympathetic to people wanting credit, compensation and control of their work, but if they want that they need to grant the same to all of the IP that's *in* their work, very few of them do. They shouldn't ask or expect what they themselves do not give.

Re: Only for some photographers.

"Some photographers really do *make* photos rather than merely take them."

And I am one of those photographers that concentrates more on creating images instead of capturing moments. Though there is an art into positioning yourself in the right place at the right time to allow you to be able to capture a particular image.

Re: Only for some photographers.

in many cases all they did was point a camera and press the shutter, but had nothing to do with creating the mise-en-scène, or any of the patented or copyrighted objects,

Who cares if the object is patented? Having a patent on something does not mean you get to control pictures of it.

Whether an object is copyrighted may or may not matter depending on the exact use, but I will say that if you build a building, then even if you hold a copyright on the design, don't expect to be able to prohibit people from taking pictures of the skyline. And if you sell a sculpture to a city so they can put it on the sidewalk, you're not allowed to complain when people take pictures of it.

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"Whether an object is copyrighted may or may not matter depending on the exact use, but I will say that if you build a building, then even if you hold a copyright on the design, don't expect to be able to prohibit people from taking pictures of the skyline. And if you sell a sculpture to a city so they can put it on the sidewalk, you're not allowed to complain when people take pictures of it."

I agree, but I think that when some urban photographers obnoxiously assert total copyright over an image, and sue over fair use, they fail to awknowlege that their image is a derivative work, comprised of the work of everyone who created all of the objects in the photo. I mention patents only incidentally, to note how much IP a simple photo can encompass.

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Bullshit. How many great works of art out there started as experiments where the artist had no idea what it would turn out like in the end? Art History is full of them. And I wasn't defending copyright. I was explaining why he was making a stupid argument based on what the law actually says. That's not a defense of copyright. Personally I think it's pyrite that is designed to facilitate the abuse of the wealthy on others.

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The 'automatic' copyright you get as the author of a work when it's created is only available to 'persons'. A monkey is not (in the legal sense) a 'person', therefore it did not get the copyright so it can't sue on that basis.

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There's a big problem with that whole "setting up the environment" argument--too many entities can make that claim on any specific work. I wouldn't want Canon claiming copyright on photos taken with their cameras, or Adobe because their software was used to edit the final image.

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1) As the monkey has proved capable of (intentionally?) creating this art, is the monkey a person?

2) Is the monkey suing for copyright infringement?

Of course, if the monkey is considered a person, then he's guilty of theft of a camera, even though he returned it. Because he took the photo using stolen property, any copyright claim is likely null and void.

Re: Re: monkey selfie??????

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I would expect that copyright estoppel could be applied here, in which case it would really mess up his claim.

The traditional example of copyright estoppel is where an author presents fiction as fact, and is thereby estopped from later claiming that there is a copyright. When you say it's a fact, people are entitled to rely on that.

Here, if he's been claiming that the animal took the picture, I don't see a good reason why he ought to be able to change his position now, after people have been relying on it.

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"How much post processing would be required to make the work transformative"

A fair bit, I'd think, and it still wouldn't affect the underlying picture's status. Remember, just because it's a derivative work, that doesn't mean that section 102 doesn't apply (assuming US law); the derivative material standing alone has to be an original, creative work. Trivial alterations won't suffice.

Re: monkey selfie??????

But the photographer insists that the monkey took the picture. You can say he's lying, but I doubt he would be allowed to legally argue the opposite. At the least, Wikimedia relied on his statement and would not be liable.

Re: monkey selfie??????

My dad has a camera that can auto-focus and HDR that fast. It's a $1600 camera, but I would assume this guy spent at least that much on his equipment.

Any person can take amazing pictures if they take hundreds of pictures and just pick out the lucky ones. Any good photographer will tell you that they take tons of pictures and keep only a percentage. It's vary possible that the monkey got lucky.

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It depends on the image. Product photography (the kind without live subjects like models in it) is often very deliberate with the setup where there isn't much of a need to take lots of images. Other stuff yes, except that it's not so much of the "spray and pray" approach that you make it sound like it is. It's more like there is a significant amount of setup and then lots of shots are taken that allow you to be very picky in selecting the absolute best one from a ton of images where almost all of them would be sufficient for what is needed.

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precisely...i know when i first got 'into' photography to some extent, way back in high school, i was actually very UNimpressed that 'professional' photographers would take rolls and Rolls and ROLLS of pictures to glean ONE that was worthwhile...

frankly, kind of made it seem like it WAS a random process where you just take a thousand pictures, and ONE will turn out 'okay'...

(yes, OF COURSE, i am aware that photogs can and do all sorts of stuff to set up the picture, etc, especially in studio settings; but they STILL took hundreds of frames, bracketing exposure, etc, to get one good shot...)

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"kind of made it seem like it WAS a random process where you just take a thousand pictures, and ONE will turn out 'okay'..."

That is, essentially, the process. You can tilt the odds to make a great photo more likely, but it's still a pretty random process.

A friend of mine was a professional artsy photographer, and he told me that the artistic part of photography is not so much in the actual taking of the pictures -- it's in the ability to recognize a great picture when you see it.

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Although there are a few rare times due to the difficulty of the particular shot that that may be the case, typically with pros that is not. The reason a lot of images are taken is a matter of refinement. And yes being able to spot the best out of a sea of good is also an art.

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My dad has a camera that can auto-focus and HDR that fast. It's a $1600 camera, but I would assume this guy spent at least that much on his equipment.

I just picked up my $700 SLR, turned it on, held it at arm's length pointed at my face, and pushed the shutter button. The photo was perfectly in focus (or nearly so at least). As long as he had the camera/lens set to autofocus with a wide angle lens, it's not at all surprising to get some well focused shots. As for composition, it could be cropped, and for lighting it was outdoors in daylight. Dead simple to get good lighting.

Re: monkey selfie??????

That's a bit of a catch-22 isn't it? If the monkey took it, he has no claim of copyright. If he took it, it's just a pretty good photo of a monkey and nobody's paying anything for it. He should probably just give up.

Re: monkey selfie??????

The article specifically stated that "hundreds" of photographs were taken. It's not unusual for one or two to be focused well out of a sea of badly focused shots.

By the way, why on Earth would this guy even try at this point to claim that he, not the monkey, took the photo?

1) It ruins the selling power of the photo. Suddenly it's gone from '1 in a million shot' to 'Meh, it's an OK picture of a monkey.'

2) It's devastating to any possible credibility should this ever go to court. 'So, Mr. Photographer, for many many years you've claimed that you should have the copyright on this photograph that you claimed a monkey took. Now, when it's quite convenient to your case, you claim that actually it was you that took the shot. Tell me, have you been lying for the last few years or are you lying now? Why should the jury believe a word you say?'

Other kinds of shutters?

If copyright goes to the one who pressed the shutter button, then what of a shutter button triggered via a motion detector? The monkey was no more aware of taking a picture than a bird triggering a bird feeder camera. Does this mean that bird feeder camera owners cannot claim copyright?

How about a thief triggering a motion detecting camera? Set aside any silly copyright claim by the thief in an effort to keep the camera footage out of court. If the camera owner posts the photo on his blog page, would the thief be in his rights to demand the photo be taken down because the thief, having "pressed the shutter", is the copyright owner?

Re: Other kinds of shutters?

The copyright goes to the person that set up the camera, or the one that paid for it to be done (work for hire). They set up the camera to take the picture (pushed the shutter button), no matter how delayed.

Re: Time to retire the lance...

If he loans the camera to someone else for a vacation he wouldn't own the picture, but if he hands the camera to a passerby to take his picture he would own it. ( your vacation pictures don't automatically become public domain just because you asked someone else to take your picture for the backdrop) Also, if someone stole his camera and took pictures, he would also own it just as I would own the pictures taken with my smartphone. If I didn't own the pictures that were taken after it was stolen I wouldn't be able to properly prosecute the thief and recover the stolen property. The only question is if an animal can be a thief.

[quote]“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.[/quote]

Well ... perhaps he should have considered that before he gave his equipment to the monkey.

Re: Shakespeare?

Yes, copyright is weird.

But your copyright would be totally unenforceable. Copyright allows for two identical works to be created independently and have two separate copyrights.

The problem with your example is that to enforce your copyright against someone, you would have to prove they copied your version of shakespeare, and not the original. That would be really hard to do unless they admitted it.

This of course ignores the DMCA, which allows you to claim copyright on anything and demand it be removed from the internet.

I represent the subject of your photograph, Mr. Bobo. You have not a signed waiver from my client to distribute said photograph or likeness. We therefor request $1000 for every primary distribution made by you and $250 for every copy from that photograph.

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Actually, what's interesting here is that even though the picture was taken in the United States, everyone is only applying United States copyright law instead of international copyright law. The basis of that is entirely because Wikimedia is based in the United States, but is that an accurate representation? What if the country in which he took the picture says that whoever owns the camera owns the picture and that his copyright claim in the United States is based on having an existing copyright claim in another country?

What if the country in which he took the picture says that whoever owns the camera owns the picture and that his copyright claim in the United States is based on having an existing copyright claim in another country?

Nikon says they made the camera therefore they own all works created by , because they hold the patent on the camera , No way says company who made the film/sd card , Ok Ok Just blame the damn Monkey already .

This makes me wonder. This past weekend I went out of town and visited a little scenic area in New England. A couple asked me to take a photo of them with the lighthouse in the background as he had just proposed to his girlfriend and they wanted to memorialize it. If that photo somehow was used publicly would I have the right to claim copyright on the photo?

Re:

Yes, you would. You're the one who did all the creative work in lining up the shot, framing, lighting, etc. Since you're the one holding the camera, and there is no signed contract transferring copyrights from you to the happy couple, you have the copyrights on the photos stored on their camera.

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Yes, you would. You're the one who did all the creative work in lining up the shot, framing, lighting, etc.

I disagree. The commenter did not set up any lighting (the couple probably set the camera's flash to be off or on before handing over the camera, and the position of the sun was determined by when the couple asked the picture to be taken.) The couple's pose was entirely their "creative work" (if you can call two people standing next to each other and smiling "creative"... it's been done literally millions of times, but whatever.) The lining up of the shot was restricted by the couple's instructions that the couple be in the foreground and the lighthouse in the background. Perhaps the EXACT lineup of the shot was up to the commenter, but how much creativity went into that vs the other aspects of the picture?

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As a hobbyist photographer with a DSLR, if someone handed me a camera so I could take a photo of them, I would be the one exercising (more or less) complete control over the shot. I would fiddle with the settings, tell them to move this way or that way, tell them to wait for the lighting to be just right etc.As an aside, the next time this happens to me, I'm going to intentionally be a dick and not tell them about the copyrights until after I've taken the photos, just to see what their reaction will be. Of course I have no intention of trying to enforce what would be my copyrights (since I'm anti-copyright after all).

Yup

Yup. As Rikuo hints at, by statute, copyright transfers *must* be written. Implied or oral agreements do not stand. So, yes, you own the copyright to the photo of the couple, and it was yours, and remains yours, from the moment the image was fixed in a medium.

Re: Yup

I think it would be relatively easy to argue that there is an implicit licence for personal copying and distribution. Whether that allows future commercial use is a trickier question, especially as the situation arises very frequently now. (If such a photo were uploaded to Facebook, is the user violating either the photographer's copyright or Facebook's TOS?[1])

Here there are no statutory damages for non-commercial infringement, so as the photographer has surrendered all copies of the image and is thus incapable of deriving any profit from its distribution would strongly suggest that there wouldn't be any damages for personal use.

There might also be some room to argue that the subjects in such a situation were themselves joint authors, albeit with only a small contribution to the total authorship (depending on how much creativity was applied by the photographer).

[1] Worse, what about the more onerous so-called "moral rights" that exist in Europe and elsewhere?

Re:

Technically, yes. As you are the one who took the photo, you own the copyright to it. The thing is, most people wouldn't actually file copyright claims over something like this.

This is why photographers can use wedding pictures that they take in their portfolio because they own the copyright to them, and not the bride and groom (assuming there wasn't a contract that specifically reassign the copyright from photographer to the wedding party)

Re: Re: Re:

I've been in wedding photos. For the staged photos, the photographer pretty much made all the decisions regarding the photos - who would stand where, what pose each person should take, the angle, the lighting, which camera to use, etc. Pretty much the only thing the couple decided is what they were wearing and which park the photos would be taken in. For the non-staged photos, they still used their discretion on who, what, where, when, and how to photograph. There's a good reason why they get the copyright.

This is different from a situation where you ask someone to take a photo with a specific subject and a specific background at a specific time of day with a specific camera set to specific settings. I am thinking that if you asked three people to take that photo, at least two of them would be functionally identical (assuming there wasn't a technical problem like not holding the camera steady.)

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Re: Re:

Actually, that's not correct. I worked as both a professional wedding videographer and photographer and I didn't own any of the pictures or video I took. I was the creative driving force behind quite a few of them, but I was being employed by them. When you are employed by someone else to take a picture the person who is employing you own that picture unless you have a contract that says otherwise. We usually ask for permission to use certain pictures or video, and we certainly retained a collection of backups in case anything went wrong with their copies, but anyone who thinks that they own the pictures in that scenario is wrong.

Now, if I was a guest and I was taking random pictures with my own camera, I would on them, but I'm not too sure about the cameras left on the tables by the bride and groom. In a sense, when you use those cameras you are agreeing to use them on behalf of the bride and groom so I wouldn't really think that I would own those copyrights either.

Re: Re: Re:

Actually, that's not correct. I worked as both a professional wedding videographer and photographer and I didn't own any of the pictures or video I took. I was the creative driving force behind quite a few of them, but I was being employed by them. When you are employed by someone else to take a picture the person who is employing you own that picture unless you have a contract that says otherwise.

Now, if I was a guest and I was taking random pictures with my own camera, I would on them, but I'm not too sure about the cameras left on the tables by the bride and groom. In a sense, when you use those cameras you are agreeing to use them on behalf of the bride and groom so I wouldn't really think that I would own those copyrights either.

You wouldn't think that, but you're wrong. If you take the photos, even if the wedding party owns the camera, the copyright is yours.

Re: Re:

No, because unless the person is actually your employee, it's only a work for hire "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

Re: Re: Re:

No, express work for hire agreements only have effect under certain very specific circumstances. From the statute (17 USC 101):

A 'work made for hire' is ... a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Other than that, it has to be by an employee. A mere photograph won't qualify.

Re:

Yes, you hold the copyright. But a good argument would be that you gave the couple a license when you handed the camera back to them. You probably didn't assign the copyright to them, because that has specific requirements.

Let me stop you right there: It doesn't. It goes to the person who made the creative decisions. If I give my camera to a stranger and instruct them to take a picture of me while holding the camera at a particular angle while I strike a particular pose, then I would likely own the copyright because I'm the driving force behind the photo, even though I didn't press the shutter. In the case of a motion-activated camera, you would at least have the creative choice of where to put the camera.

But in the monkey case, the photographer claims the monkey grabbed the camera out of his hand. There's no creative process that he went through to get those photos. He didn't decide what to take a picture of, when to take it, what the alignment of the camera should be, or even that a photo should be taken at all. Simply owning the equipment doesn't give him anything more than ownership of the physical photo itself.

Re:

Nope, with photos the copyright goes to the person who pressed the shutter button. The amount of creativity used to take the photo is irrelevant--whoever pressed the shutter button owns the copyright. Of course, this case is in a grey area because the monkey who pressed the button is not a person who can own a copyright.

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Yes,the creativity is intrinsic to the fixed expression. But that has nothing to do with the copyright--which applies from the moment that the work is fixed (pressing the shutter button--no creativity there). The creativity comes before the work is fixed. With a photo, lighting, setting, framing and camera settings--those are not copyrightable (but I guess you can get a patent for them now) and can be used by another to take a functionally identical picture with a separate copyright. The copyright is not on the creativity--but on the fixed expression (the actual photo taken).

Cre ativity is therefore one of the basic requirements for copyright protection. To meet this criterion, a work must include something that is above and beyond the original. Though verbatim use is not considered original, reference to the original work that is used to discuss a new concept is considered original. The creativity therefore need only be slight for the work to be eligible for protection.

Re:

The creative decisions are truly a requirement here. If you hand that camera to someone else and they take your picture it doesn't matter if they selected the angle or not. They could be very creative in their own right and you would still own that picture. Furthermore, if you work for someone else like a newspaper and you were taking pictures for them it doesn't matter if they direct your creativity or not. You are working for them and they own the copyright.

In the case of stolen smartphones, it also doesn't matter if you direct anything at all. If you are able to recover data from your phone and there are selfies of the thief on that phone you can use those pictures to prosecute and you can even publish those pictures in the media and there is nothing they can do about it because the thief doesn't own in the picture.

Court?

Well it appears he might try to drag this into court. I would love to be a bug on the wall when the lawyers try to hire a private detective agency to go and find the monkey and serve a subpoena for a discovery session.

I hear tell that the Three Stooges, The Marx Brothers, and Abbot and Costello are vie-ing for the parts of 1. the lawyers, 2. the private detectives, and 3. the monkey in a proposed 'made for TV' action/comedy/thriller. Their agents all claim their clients to be the best choice for each part, and won't take no for an answer. They also wish to thank their Disney brand flux-capacitor for making them available.

Edison claimed to own the copyright on all phonographic recordings, and was moving to similarly claim all motion pictures. Imagine how the world would have turned out if patent holders or equipment owners had prevailed in those claims.

Today that claim would be even stronger. There is a lot of art, not just obvious decisions, in designing an image sensor and software. The guy pressing the 'shutter' button isn't really doing much of creative work -- he could be replaced by a monkey.

Devils Advocate

Let's assume for the moment that everything is as the photographer describes. He put the camera down, turned his back and the monkey picked up the camera and took a bunch of pictures. Let's also assume that the photos the monkey took ARE public domain.

Now for the question... If the photographer looked through the "hundreds" of photos the monkey took and picked one and post processed it, can he legitimately claim copyright on the resulting POST PROCESSED image?

Re: Devils Advocate

I would say no, since any question of copyright could only be asked about the moment in time the work in question was put into a fixed medium (i.e. the moment the photo was shot and saved as a file on the SD card).

1) The camera owner set the stage for the photo to be possible.. he charged the battery and inserted it, along with a memory card, into the camera - technically he could argue that "assembling" those into a working camera was the equivalent of pushing a button... The same concept as setting a timer.

2) He did not purposefully push the button to take the photo - so anything captured at all that was not a direct and deliberate act is also in the public domain. Ie: security camera footage; photography/video equipment with any kind of automatic recording; recording equipment being left on accidentally; etc. ...All of those would be in the public domain too, since the photographer/videographer did not "push the button" to create the work.

It could be argued that taking a photo of something is stealing from the public domain - unless the photographer is in a studio with completely artificial lighting that he setup himself - since the photographer did not create the sun or the rays of light emitted by it (which went on to be reflected off of the objects that he is imaging). In essence, the light from the sun is public-domain that no photographer can own.

Re:

#1) This is a grey area. I don't think there's really been any cases of who owns the copyright on a work made by a non-person.

#2) In all these cases, the copyright would belong to the one who started the camera (or the one who directed it to be started in a work for hire situation).

No, taking a photo of something is not stealing from the public domain. Anyone else can still go out to take and publish all the monkey pictures they want. The copyright only exists for that particular photo and all its derivative works.

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What about space telescopes and cameras. There are lots of pictures taken, all the copyrights claimed by the owners of the vehicle, but are widely shared. Humans don't 'push the button' so to speak in these cases.

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With equipment left on accidentally, there is reasonable grounds to claim that there was no creativity in producing the recording, and that any creativity which might occur arises from the selection of the interesting parts (especially if the equipment wasn't deliberately set up).

Re:

1) The camera owner set the stage for the photo to be possible.. he charged the battery and inserted it, along with a memory card, into the camera - technically he could argue that "assembling" those into a working camera was the equivalent of pushing a button... The same concept as setting a timer.

And what if an assistant handled the rather non-technical details of charging the battery and inserting the memory card? Or if airport security had removed and re-inserted them for some reason?

It's not the same as pushing a button or setting a timer, anyway. Pushing the button or setting the timer will result in a picture being taken. Merely assembling a camera does not result in a picture being taken. Otherwise Kodak may as well have the copyright.

since the photographer did not create the sun or the rays of light emitted by it

No. Just no. You may as well claim that the photographer is stealing oxygen because he's breathing on public land. The rays of light are not part of the photograph anyway - they only cause a chemical reaction on the film. When you view the photograph later, totally different rays of light are reflected to allow you to see it.

Let's not be silly

There are two living entities involved in creating this image. One isn't legally a person, and can't hold copyright. That leaves ONE entity.

The article's assertion the image belongs to no one or to everyone might make sense in a ideal world of pure philosophy, but we don't live in that world. Everything of even theoretical value has to belong to SOMEONE, and Mr. Slater is the best candidate.

Laws? Laws are interpreted and re-interpreted all he time. There just hasn't been precedent set for this circumstance yet. I'm guessing there will be.

(You, in the back! A question?) Yes, I am a former professional photographer. Why?

Re: Let's not be silly

Nice attempt to confuse the issue...

"There are two living entities involved in creating this image."

Having your camera stolen by a monkey might make you "involved" but it doesn't make you an **author** for purposes of copyright.

By your own attempt at copyright, the camera manufacturer was "involved," too. And they spent wayyy more money developing the camera than Slater did buying it, plus the airline that got him to Indonesia, the customs official who stamped his passport, his local guide, the waitress who served drinks in the hotel bar... they were all "involved" in the making of the photo...you gonna argue they also have copyright?

Re: Let's not be silly

There are two living entities involved in creating this image. One isn't legally a person, and can't hold copyright. That leaves ONE entity.

That's not how the law works.

The article's assertion the image belongs to no one or to everyone might make sense in a ideal world of pure philosophy, but we don't live in that world. Everything of even theoretical value has to belong to SOMEONE, and Mr. Slater is the best candidate.

That's simply not true. It does not have to belong to anyone. That's simply false. And, no, Mr. Slater is not the best candidate and that's not (at all) how copyright works.

Laws? Laws are interpreted and re-interpreted all he time. There just hasn't been precedent set for this circumstance yet. I'm guessing there will be.

Read the original article

For those that haven't read the original articles, at the very least check out the following, where an epic rhyme-off commences between 'Dark Helmet's Legal Notice Writing Group' and 'Caters Imaginary Legal Defence Team', with 'Bobo the macaque monkey' even making a showing.

Question

So, if a "person" has to make something to be copyrighted, how narrowly is "person" defined. Could an alien or self-aware AI copyright a work, or would they be denied copyright. 91) I am not necessarily arguing the monkey should have copyright - though I do believe it should, if for no other reason than tying artistic merit to DNA seems both short-sighted and bigoted beyond the bounds of hubris, and (2) I realize there is no pressing reason to worry about a "person" that is not h. sapiens sapiens, but it bothers me that we are denying agency to non-humans for essentially "because reasons".

Re: Question

Could an alien or self-aware AI copyright a work, or would they be denied copyright.

Our current laws do not anticipate this sort of thing - there would probably have to be a court case to decide, unless a new law was passed defining it. I am frankly not even sure if a truly self-aware AI is even possible for us to build or that aliens exist (or if they do, that they're close enough to ever contact us - if FTL is impossible then they'd have to be awfully close) so your scenarios may well never come up.

I am not necessarily arguing the monkey should have copyright - though I do believe it should

No. First of all, the monkey did not intentionally take the photos - it likely did not even know what the camera was. There was, therefore, no authorship, no creativity, and no copyright.

Second, our laws are simply not set up to treat animals equally - and that's as it should be. Otherwise we'd have to become vegetarians to avoid murder, neutering your pet would be a horrible sexual assault, and driving over a squirrel would be a hit-and-run unless you reported it to the police. Not to mention the legal trouble the animals would be in, for everything from trespassing to public nudity to failure to file tax returns. Both us and them are better off with them outside the system.

Third, even if you assigned the monkey the copyright, what do you think it would DO with that copyright? It's not capable of understanding the concept. It has no use for money even if it were capable of somehow selling the rights to the photo. It wouldn't understand how to use the court system to enforce its rights even if the courts allowed it, and it wouldn't be able to effectively communicate with a lawyer either. So the result would be either that the photo is locked up and unusable because of an unobtainable copyright, or the photo is freely distributed because everyone knows there's no way a lawsuit could actually be filed.

Copyrights

Wikipedia needs to fire its lawyers. The copyright laws are clear and they violated the photographers copyrights and Intellectual property rights. The mindset is "we are Wiki we do what we want". Well have fun paying what I hope are MILLIONS in damages and punitive costs in court. This is once again a millionaire thinking he has more rights than the average person. WRONG! Frankly Wikipedia has now outlived it's usefulness and is as arrogant as hell.

Pictures don't always belong to the person who take them

You guys are taking the loss out of context. There are actually quite a few exceptions to the law which determines the copyright of the picture. If, for example, I took a picture on behalf of a newspaper - and I have - I don't own that picture. The newspaper owns it. That's the simplest exception, but there are others. Anytime I take a picture on behalf of someone else that person owns the copyright instead of me. If someone asked me to take their picture with their camera and there just happens to be a Yeti in the background I can't claim ownership of the picture just because I pushed the button.

Now, what happens if someone steals my camera and take pictures? I still own it and there are plenty of precedents which prove it. The theft of smartphones is becoming increasingly common and one of the methods of tracking them down and prosecuting thieves is the use of selfies taken by thieves. Even though the thief took the picture, they can't tell the media to take the picture down because they own it. The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.

Now, in the case of an animal taking this picture that is still ambiguous, suppose a trip wire was used to take a picture instead or motion sensor. The animal is still physically pushing the button. That's how many wildlife photos were taken and the copyrights are protected just fine. So is it really important how the animal took the picture? Does the act of stealing the camera in and of itself make the difference versus a motion sensor? I can't find a precedent for that one, but it does seem fairly obvious that the spirit of law sides with the wildlife photographer if not the exact phrase. My point is that there are many examples of people owning a picture that they didn't push the button for.

Re: Pictures don't always belong to the person who take them

You guys are taking the loss out of context. There are actually quite a few exceptions to the law which determines the copyright of the picture. If, for example, I took a picture on behalf of a newspaper - and I have - I don't own that picture. The newspaper owns it.

Right, that's a "work-for-hire" situation. The monkey picture is not a "work-for-hire" situation because there is no legal way for the monkey to be an employee.

Anytime I take a picture on behalf of someone else that person owns the copyright instead of me.

Not true. You actually do own the copyright.

If someone asked me to take their picture with their camera and there just happens to be a Yeti in the background I can't claim ownership of the picture just because I pushed the button.

Yes, you could claim copyright of the picture. You my not be able to demand the physical picture (or the negative or the SD card) itself, but that is different then holding the copyright.

Now, what happens if someone steals my camera and take pictures? I still own it and there are plenty of precedents which prove it. The theft of smartphones is becoming increasingly common and one of the methods of tracking them down and prosecuting thieves is the use of selfies taken by thieves. Even though the thief took the picture, they can't tell the media to take the picture down because they own it. The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.

I believe that that the thief would actually own the copyright in this case. But you are slightly conflating physical possession and copyrights. The thief wouldn't own the physical media the picture is on because it was obtained unlawfully, but still may actually own the copyright of the picture.

Now, in the case of an animal taking this picture that is still ambiguous, suppose a trip wire was used to take a picture instead or motion sensor. The animal is still physically pushing the button. That's how many wildlife photos were taken and the copyrights are protected just fine. So is it really important how the animal took the picture? Does the act of stealing the camera in and of itself make the difference versus a motion sensor? I can't find a precedent for that one, but it does seem fairly obvious that the spirit of law sides with the wildlife photographer if not the exact phrase.

When setting up a shot using a tripwire, the photographer still is controlling the creative elements of the shot - framing, lighting, etc. It been pretty much settled that the photographer owns the copyright in those cases. The monkey picture isn't like that though - the monkey's creativity provided those elements, not the photographer who has admitted he turned his back and the monkeys took his camera and started shooting pictures.

My point is that there are many examples of people owning a picture that they didn't push the button for.

Not as many examples as you may think. In most cases, whoever pushed the button owns the copyright, unless it was a work-for-hire situation.

Re: Pictures don't always belong to the person who take them

There are actually quite a few exceptions to the law which determines the copyright of the picture. If, for example, I took a picture on behalf of a newspaper - and I have - I don't own that picture. The newspaper owns it.

Re: Re: Pictures don't always belong to the person who take them

The true owner in this case is the owner of the device not the person in pushed the button. If the thief owns the picture it would be increasingly difficult to prosecute or publish.

Learn what fair use is.

Even in countries without fair use, there's generally an exception for court proceedings, especially criminal ones. The police, for example, are allowed to possess drugs and all manner of contraband and/or private property for the purpose of holding them for evidence. Certainly they're allowed to possess or copy a photograph for the purposes of prosecuting a theft, regardless of the copyright status of the photograph.

But yeah, even if that didn't apply, fair use would. The "purpose and character of the use" factor would be so heavily in favor of fair use that it pretty much overrides the other factors.